NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

HAMMAD MOHAMED AMER, M.D., FATMA AMER, and 

BANNER HEALTH, Petitioners, 

v. 

THE HONORABLE DAVID TALAMANTE, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of

MARICOPA, Respondent Judge, 

STARR PALMER, Real Party in Interest. 

No. 1 CA-SA 18-0274 

Appeal from the Superior Court in Maricopa County

No. CV2016-094573 

The Honorable David Talamante, Judge Retired

JURISDICTION ACCEPTED; PARTIAL RELIEF GRANTED

COUNSEL

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Eileen Dennis GilBride

Co-Counsel for Petitioners

Slattery Petersen PLLC, Phoenix

By Elizabeth A. Petersen

Co-Counsel for Petitioners

FILED 3-7-2019
2 

Udall Shumway, PLC, Mesa

By H. Michael Wright, Jason C. Chapman, Fletcher R. Carpenter, 

Lincoln Wright

Co-Counsel for Real Party in Interest

Davis Miles McGuire Gardner, PLLC, Tempe

By Kevin P. Fine

Co-Counsel for Real Party in Interest

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, 

in which Judge Kent E. Cattani and Judge James P. Beene joined.

W E I N Z W E I G, Judge:

¶1 Banner Health and Dr. Hammad Mohamed Amer 

(collectively, “Petitioners”) seek special action relief from the superior 

court’s December 6, 2018 order (1) precluding ex parte communications 

between Banner and its employees and (2) requiring Banner to disclose all 

information obtained via ex parte communications with trial witnesses to 

be used at trial. We accept jurisdiction and grant partial relief. 

FACTS AND PROCEDURAL BACKGROUND

¶2 This special action arose from a medical malpractice lawsuit. 

Plaintiff Starr Palmer alleges that Dr. Amer’s negligence caused her left

forearm to be amputated. She sued Dr. Amer and Banner Health. Dr. Amer 

is a physician and employee of Banner Health. During discovery, Banner’s 

counsel learned that Palmer’s counsel had ex parte contact about the 

lawsuit with Dr. Jessica Regnaert, another Banner employee and Palmer’s 

primary care physician. Banner’s counsel warned Palmer’s counsel to 

immediately stop all ex parte communications with Banner employees. 

Palmer’s counsel later argued the inverse position—that only Palmer could 

have ex parte contact with Dr. Regnaert pursuant to the physician-client 

privilege. 

¶3 This disagreement resulted in dueling motions to preclude ex 

parte communication with Dr. Regnaert. In a minute entry dated December 

6, 2018, the superior court ruled for Palmer on two issues raised in this 

special action. As relevant here, the court’s order (1) prohibited Banner 

from having ex parte communications with any “witnesses [who] have a 
AMER/BANNER v. HON TALAMANTE/PALMER

Decision of the Court

3 

physician-patient privilege relationship with Plaintiff,” including Banner 

employees such as Dr. Regnaert, and (2) required Banner to disclose all 

information obtained via ex parte communications with “any trial witness 

that is intended for use at trial.” 

¶4 Petitioners moved to stay the lawsuit pending a special 

action, which the superior court denied. In denying the stay, however, the 

court clarified that it “has not ordered the disclosure of confidential 

information. The order is limited to information that is intended for use at 

trial. The intent to use at trial requires a waiver of the privilege.” 

Petitioners then sought special action relief and a stay of proceedings by 

petition in this court. After staying the lawsuit on December 12, 2018, we

accepted jurisdiction and granted relief on January 4, 2019. We also lifted 

the stay and promised a written decision to follow. This is that decision.

JURISDICTION

¶5 We accept special action jurisdiction because Petitioners lack 

an equally plain, speedy and adequate remedy by appeal. Salvation Army 

v. Bryson, 229 Ariz. 204, 205, ¶ 1 (App. 2012). 

DISCUSSION

¶6 Petitioners first challenge the superior court’s order

preventing Banner’s counsel from having ex parte communications with 

Banner physician-employees about the lawsuit. We review the court’s 

decision for an abuse of discretion. Id. at 207, ¶ 8. 

¶7 Petitioners argue the order is “legally erroneous,” pointing to

Phoenix Children’s Hospital v. Grant, 228 Ariz. 235 (App. 2011), as controlling 

and dispositive. Grant held that counsel for a hospital defendant in a 

medical malpractice lawsuit may have private, confidential 

communications with treating physicians who are hospital employees if 

their care is relevant to plaintiff’s claims. Grant, 228 Ariz. at 239-40, ¶¶ 15, 

19. The filing of a medical malpractice lawsuit does not expand the 

physician-patient privilege to bar communications that are otherwise 

allowed under the employment relationship. Id. at 239, ¶ 15. Palmer 

concedes that Grant applies here on its face, but argues we should “either 

overrule” Grant because it conflicts with Duquette v. Superior Court, 161 Ariz. 

269 (App. 1989), or “narrow the holding in Grant by declaring that it applies 

only to those employees who were involved or had first[-]hand knowledge 

of the tortious event.” 
AMER/BANNER v. HON TALAMANTE/PALMER

Decision of the Court

4 

¶8 Grant controls here.1 Banner’s counsel cannot be prevented 

from having private communications with Dr. Regnaert about the lawsuit. 

Grant authorizes ex parte communication between Banner and all Banner 

employees who have relevant testimony to “the injuries at issue in the 

lawsuit.” 228 Ariz. at 240, ¶ 19. Dr. Regnaert evaluated and treated Palmer 

for “phantom limb pain” shortly after the limb was amputated and has 

been Palmer’s primary care physician since 2014. Petitioners have thus 

identified Dr. Regnaert as a material witness from the outset, including in 

their initial disclosure statement. Petitioners assert Dr. Regnaert has 

important information regarding their affirmative defenses, including 

contributory negligence and causation, and for damages and life 

expectancy. Indeed, Palmer herself identified Dr. Regnaert as a trial 

witness and expert witness in her September 28, 2018 disclosure statement. 

And, in motion practice below, Palmer conceded that “Dr. Regnaert’s

treatment of Plaintiff spanning 2014 to the present makes her a potential 

witness concerning Plaintiff’s damages; her treatment provides some

foundation for projected care needs of ongoing and future damages for this 

permanent loss.” 

¶9 We grant special action relief on Petitioners’ first argument, 

reversing the superior court’s order prohibiting ex parte communication 

between Banner and its employees. Banner and its counsel may engage in 

ex parte communications with Dr. Regnaert, a Banner physician and 

employee, about the lawsuit. 

¶10 Petitioners next challenge the superior court’s order that 

Banner immediately produce all information learned via ex parte 

communications with trial witnesses. Petitioners interpret the court’s 

directive as requiring disclosure of information that Banner employees 

 

1 Duquette holds that defense counsel in a medical malpractice case 

may not engage in ex parte communications with the plaintiff’s treating 

physicians without having obtained the plaintiff’s consent. 161 Ariz. at 277. 

But Grant distinguishes itself from Duquette, defeating Plaintiff’s argument 

that Grant must be overruled because it conflicts with Duquette. Grant, 228 

Ariz. at 239, ¶¶ 13-15 (“[W]e conclude that Duquette does not apply to 

treating physicians who are employees of a corporate defendant that is itself 

a defendant in a medical malpractice action.”). And we see no reason, 

under the facts of this case, to narrow the Grant court’s holding, which is 

premised on the employer-employee relationship and patient expectations. 

Id. at 239, ¶¶ 16-17.
AMER/BANNER v. HON TALAMANTE/PALMER

Decision of the Court

5 

conveyed to Banner attorneys, which is protected under the attorney-client 

privilege. 

¶11 We do not, however, interpret the court’s December 6 order 

to compel disclosure of information protected by the attorney-client 

privilege. The court directed “the parties [to] disclose all information 

obtained through ex-parte communication with any trial witness that is 

intended for use at trial,” and later clarified the order was “limited to 

information that is intended for use at trial,” rather than “the disclosure of 

confidential information.” We read the order to require that the parties 

satisfy their standard disclosure obligations under the Arizona Rules of 

Civil Procedure, including Rule 26.1(a)(3), which requires the disclosure of 

“a description of the substance—and not merely the subject matter—of the 

testimony sufficient to fairly inform the other parties of each witness’ 

expected testimony.” Banner waives any privilege for information it 

intends to elicit from its physician-employee at trial. Robert W. Baird & Co. 

v. Whitten, 244 Ariz. 121, 127, ¶ 17 (App. 2017) (waiver of attorney-client 

privilege occurs only when the party seeks to use protected information as 

both sword and shield). We deny special action relief on Petitioners’ second 

argument.2

CONCLUSION

¶12 We accept jurisdiction and grant partial relief as set forth 

above. 

 

2 Given our holding, we need not reach Palmer’s argument regarding 

the constitutionality of A.R.S. § 12-2234.